United States District Court, D. Columbia.
For FRIENDS OF ANIMALS, Plaintiff: Michael Ray Harris, FRIENDS OF ANIMALS, Centennial, CO.
For SALLY JEWELL, in her official capacity as Secretary of Interior, Department of the Interior, Defendant: Jeremy Hessler, Nicole Marie Smith, LEAD ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.
JOHN D. BATES, United States District Judge.
Friends of Animals (FOA), a not-for-profit environmental advocacy group, would like to know whether the spider tortoise and flat-tailed tortoise are endangered species. But the Department of the Interior has moved with the alacrity of the proverbial tortoise, and after waiting now almost two years, FOA has yet to receive a definitive answer. The Department's silence, FOA argues, has caused the group various injuries: it denies the group information to which it is entitled, for instance, and it makes advocating on behalf of animals more difficult. In this case, however, these supposed harms do not rise to the level of " concrete and particularized" injuries in fact, and the Court will grant the Department's motion to dismiss FOA's
complaint for lack of subject-matter jurisdiction.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
The Endangered Species Act gives the Secretary of the Interior authority to classify animal or plant species as " endangered" or " threatened." 16 U.S.C. § 1533(a). But individual citizens have a role to play in this classification process too. Congress has allowed any " interested person" the chance to submit a petition to the Secretary, asking that she add a species to the endangered or threatened list, reclassify a species already on the list, or remove a species from the list. 5 U.S.C. § 553(e); see also 16 U.S.C. § 1533(b)(3)(A).
The Department's receipt of such a citizen petition starts the clock on a series of deadlines. The first comes after about three months (and is called, appropriately enough, a 90-day finding). " To the maximum extent practicable," the ESA explains, the Department must make a finding within 90 days of receiving a petition " as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A). If the 90-day finding is " negative" --that is to say, the petition does not " present substantial . . . information" suggesting that listing the species " may be warranted" --the listing process for the petition comes to a close. Id. § § 1533(b)(3)(A), (C)(ii). But if the 90-day finding is " positive" (i.e., the petition does present the requisite " substantial information" ), the Department's second deadline kicks in. In that case, the Department must undertake a more comprehensive review of the named species and--within one year of receipt of the original petition--issue the (again, appropriately named) 12-month finding. Id. § 1533(b)(3)(B).
The Department may reach one of three conclusions in these 12-month findings: (1) that the petitioned action is " warranted" ; (2) that the petitioned action is " not warranted" ; or (3) that the petitioned action is " warranted but precluded," meaning that it is a lower priority than other pending listing proposals. Id. § 1533(b)(3)(B). Each finding triggers unique responsibilities for the Department. If action is " not warranted . . . the Secretary shall promptly publish such finding in the Federal Register," and the petition process comes to an end. Id. § 1533(b)(3)(B)(i). If, however, the action is " warranted" based on the Department's year-long review, the Department must publish in the Federal Register a notice of proposed rulemaking to implement the petitioned listing action.
See id. § 1533(b)(3)(B)(ii). And if the action is " warranted but precluded," the Department must publish that finding in the Federal Register, along " with a description and evaluation of the reasons and data on which the finding is based." Id. § 1533(b)(3)(B)(iii).
The Department's failure to comply with these deadlines can, in some circumstances, subject the agency to judicial review. The ESA includes a citizen-suit provision, which explains that " any person may commence a civil suit on his own behalf . . . against the Secretary where
there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." Id. § 1540(g)(1). But there are limits to a citizen's ability to sue, including a provision that " [n]o action may be commenced . . . prior to sixty days after written notice has been given to the Secretary" of the alleged violation. Id. § 1540(g)(2)(C).
Friends of Animals hopes to take advantage of the ESA's citizen-suit provision here. The group is a " not-for-profit international advocacy organization" that " seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals." Compl. [ECF No. 1] ¶ 5. To that end, on September 27, 2013, FOA (along with another advocacy group not party to this litigation) submitted two petitions to the Secretary, asking that she add the spider tortoise and flat-tailed tortoise to the endangered- or threatened-species list.
See id. ¶ ¶ 20, 27. As FOA sees things, various factors call into question these animals' continued survival, including " habitat loss," " local consumption," " international trade in parts," and " the international pet trade." Id. ¶ ¶ 21, 28.
But one might say the Department has learned all too well the lesson of the tortoise in Aesop's famous child's tale. Its efforts to respond to FOA's petitions have been " [s]low" and (only arguably) " steady." The Hare and the Tortoise, in Aesop's Fables: A Classic Illustrated Edition 12 (1990). It took almost nine months for the Department to announce its " positive" 90-day findings for both tortoise species.
See id. ¶ ¶ 22, 29; see also 79 Fed.Reg. 32,900, 32,900 (June 9, 2014). And to date, the Department has yet to issue any 12-month findings concerning either species--even though almost 22 months have passed since FOA submitted its petitions. See Compl. ¶ ¶ 23-24, 30-31.
In light of this protracted timeline, on September 27, 2014, FOA sent the Secretary a notice of its intent to sue.
See id. ¶ ¶ 25, 32. And just over three months later, the group followed through on that notice, filing suit in this Court.
See id. at 9. The complaint alleges that the Department has " failed to make a finding indicating whether the petitioned action was warranted within twelve months after receiving the petition[s] to list the spider tortoise [and flat-tailed tortoise] as threatened or endangered under the ESA." Id. ¶ 36;
see also id. ¶ 37. Friends of Animals therefore requests various forms of relief, including a declaration that the Department violated the law, an order directing the Department " to issue rulemakings and findings on each of the [p]etitioned [s]pecies within sixty . . . days," and an award of costs and attorneys' fees. Id. at 8-9. The Department, for its part, has responded to the group's allegations, arguing that FOA lacks standing and that the complaint therefore " should be dismissed under Federal Rule of Civil Procedure . . . 12(b)(1) for lack of subject matter jurisdiction." Gov't's Mot. at 1.